In their Final Rule for Contract Year 2023, the Centers for Medicare and Medicaid Services (CMS) implemented Third-Party Marketing Organization requirements that will impact your business.
The marketing and communication updates include:
- Defining TPMOs
- Necessitating use of a standard disclaimer both when the entities are marketing fewer than all plans available in a given geographical area and when the entities are marketing all plans available in a given geographical area
- Implementing new rules regarding plans’ oversight responsibilities
Here at Ritter Insurance Marketing, we know the importance of staying compliant. We strive to keep you up to date with any compliance changes, including call recording, marketing and event parameters, and more. These regulations pertain to agents, so let’s take a closer look at them so you can stay compliant!
What Are Third-Party Marketing Organizations?
CMS defines Third-Party Marketing Organizations (TPMOs) as “organizations that are compensated to perform lead generation, marketing, sales, and enrollment related functions as a part of the chain of enrollment.”
By this definition, CMS considers all insurance agents and brokers to be TPMOs, meaning that insurance agents and brokers must adhere to all CMS’ TPMO rules and guidelines.
What Do Agents/Brokers Need to Do as TPMOs?
Agents/brokers should follow the checklist below.
Add the TPMO disclaimer to your website.
Add the TPMO disclaimer to your email communications.
When conducting lead-generating activities, disclose to the beneficiary that his or her information will be provided to a licensed insurance agent for future contact:
- Verbally when communicating with a beneficiary through the telephone.
- In writing when communicating with a beneficiary through mail or other paper communication.
- Electronically when communicating with a beneficiary through email, online chat, or other electronic messaging platform.
Add the TPMO disclaimer, verbatim, to all of your marketing materials, including print and TV ads.
When conducting lead-generating activities, disclose to the beneficiary that he or she is being transferred to a licensed insurance agent who can enroll him or her into a new plan.
Add the TPMO disclaimer to all sales calls within the first minute.
Record calls (including video calls) with beneficiaries in their entirety. According to the CMS 2024 Final Rule, call recording is limited to marketing, sales, and enrollment calls. “Marketing” includes retention marketing, aimed at influencing a beneficiary to stay enrolled in a current plan, and as well as the mention of any benefits (e.g., dental, vision, hearing, premium reduction, and cost savings).
Identify and make a list of all vendors, contractors, and subcontractors you use for marketing, sales, lead generation, and enrollment.
Revise your existing written agreements with all of your TPMOs (vendors, contractors, and subcontractors for marketing, sales, lead generation, and enrollment) to require your TPMOs to be compliant with TPMO regulations.
Enter into written agreements with all of your TPMOs (vendors, contractors, and subcontractors for marketing, sales, lead generation, and enrollment) with whom you have relationships but do not have written agreements that require the TPMOs to be compliant with TPMO requirements.
Develop a process for disclosing to the plans your vendors, contractors, and subcontractors you use for marketing, sales, lead generation, and enrollment. Your process should include a method for reporting changes to the list.
Disclose to the plans your vendors, contractors, and subcontractors for marketing, sales, lead generation, and enrollment.
Develop a process for reporting to plans monthly:
- Staff disciplinary actions associated with beneficiary interaction to the plan
- Violations of any requirements that apply to the plan associated with beneficiary interaction to the plan.
Report to plans monthly:
- Any staff disciplinary actions associated with beneficiary interaction to the plan.
- Violations of any requirements that apply to the plan associated with beneficiary interaction to the plan.
Important Disclaimers for Consideration
Here are the disclaimers you must consider using for your Medicare marketing materials:
TPMO Disclaimer FAQs
Is the TPMO disclaimer required on materials created by the plan that I’m using and distributing to clients?
No. If the document was developed by the plan (e.g., Summary of Benefits) and you’re using it exactly as provided by the plan, the disclaimer is not required. However, if you alter the document, the disclaimer needs to appear.
Also, please note, the TPMO disclaimer is effective for all materials/sales interactions for enrollment effective dates of January 1, 2023, and beyond.
Does the TPMO disclaimer have a required location on written materials?
No. There is no specific requirements on where the TPMO disclaimer must be displayed on written materials (e.g., emails, letters, etc.) However, the disclaimer does need to be prominently displayed somewhere on actual materials.
What materials need updated with the TPMO disclaimer?
You should add the TPMO disclaimer to the following resources:
- Your website (Shop & Enroll will display this once you put in a zip code, county, and hit quote)
- Electronically conveyed when communicating with a beneficiary through email, online chat, or other electronic means of communication
- Marketing materials, including print materials and television advertisements, developed, used or distributed by the TPMO
- Sales calls within the first minute
We recommend providing the TPMO disclaimer on all materials where it is possible to do so in a font that is easily read and understood by the recipient. Additionally, other disclaimers or marketing requirements may exist. If your business card contains nothing more than your contact information, we see little risk in omitting the disclaimer. Please refer to the Ritter Docs site for more information.
Is the TPMO disclaimer required to be included on a social media post marketing my business and including my phone number?
Yes. As specified by CMS, if a social media post is being used for and meets the definition of “marketing” (as noted in the Medicare Advantage Communication Requirements), the TPMO must include the disclaimer in the post. Additionally, other disclaimers or marketing requirements may exist. See the Ritter Docs site for more information.
Do agent marketing materials without MAPD/PDP plan premiums, cost-sharing or benefit information still need the TPMO disclaimer?
The TPMO disclaimer applies to all materials used that meet the definition of marketing. If the material does not include MAPD/PDP content or is not intended to be used for MAPD/PDP plan marketing, then the material does not require the TPMO disclaimer.
Reporting of Non-Compliance
CMS requires MA plans and Part D sponsors to oversee and implement a mechanism of oversight of all agents, brokers, and other TPMOs who engage in sales and marketing of their plans. Sponsors must make this mechanism robust enough to record and report, at least monthly, to the sponsor’s CMS account manager any moderate to severe violations. Examples of these violations include, but are not limited to:
- Credentialing issues (e.g., licensing, appointment situations, testing requirements)
- Failure to comply with CMS’ marketing requirements (e.g., misleading information, cherry picking, unsolicited contact)
- Fraudulent enrollment practices (enrolling beneficiaries without consent)
- Repeat offenses, such as Scope of Appointment issues, lack of permission to contact documentation, and cross-selling inappropriately
We will continue to work hard bringing you the latest updates in compliance. Don’t forget to check this page and review the frequently asked questions for more info on our call recording feature in the Ritter Platform, CallVault!
Have questions about these requirements? Please email [email protected].
Editor’s Note: This was originally published in August 2022. It has been updated to include information more relevant to 2023.
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